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Reviving abandoned patents

Have an accidentally abandoned US patent or patent application? These can often be revived if you promptly file a USPTO petition for revival.

“It just so happens that your friend here is only mostly dead. There’s a big difference between mostly dead and all dead.” Miracle Max, “The Princess Bride”.

The USPTO declares both patents and patent applications to be “abandoned” for various reasons. Patents are usually declared abandoned for failure to pay maintenance fees. Patent applications are usually declared abandoned for failure to respond to USPTO office communications (and pay any needed fees) within the time stated on the office action.

Don’t despair. Many of these are initially only “mostly dead”, rather than “all dead”, and can be revived by promptly filing a petition to “revive”, paying the appropriate revival fee (and other fees due), and generally fixing whatever other problem caused the abandonment in the first place.

The key word here is “prompt”. Here, the USPTO attempts to distinguish between “unintentional abandonment” and “intentional abandonment”. As you might imagine, this can be a rather subjective determination that can often be decided by the length of the delay and explanations of the circumstances.

A determination of “intentional abandonment” means that the patent is legally now “all dead”, which is why it is important to act promptly.

The issue of what is “unintentionally abandoned” is a tricky gray area in patent law. Although often a form statement such as, “the entire delay was unintentional” will suffice, the longer the delay, the more that this strains credibility, and the greater the chance that additional explanation will be required/and or the petition to revive may be denied.

The general rule is thus that you should try to initiate the revival actions as quickly as possible. Fortunately, this is “quick” by legal standards, rather than “quick” by video gamer standards.

As a very rough and informal rule of thumb, which you should not rely upon, petitions filed within about six months of abandonment often have a good chance of succeeding. Petitions filed up to two years after abandonment can often also work (although the risk of rejection may increase). Even after two years or more, a petition to revive may be accepted, but here the situation does become more problematic. The petitions office may require more of an explanation for the delay, and the chances that the petition will be denied can be substantially greater.

Note that “expired” patents – patents that have died because their full patent term (often 20 years from the filing date) is up, are “all dead”. They cannot be revived.